[Federal Register Volume 69, Number 127 (Friday, July 2, 2004)]
[Notices]
[Pages 40400-40402]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-15112]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

[USCG-2004-17465; formerly CGD 94-100]


Withholding of Vessel Clearances or Permits; Identification of 
Satisfactory Sureties in Lieu of Clearance or Permit Denial

AGENCY: Coast Guard, DHS.

ACTION: Notice.

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SUMMARY: The Coast Guard is making available an optional standard form 
Letter of Undertaking that will be satisfactory for use in most minor 
civil penalty cases. Letters of undertaking are often proffered to the 
Coast Guard on behalf of vessels that might otherwise be denied 
clearance to leave port, due to possible statutory violations.

DATES: The optional standard form Letter of Undertaking is available 
for use on July 2, 2004.

ADDRESSES: The Department of Transportation's Docket Management 
Facility maintains the public docket for this notice, USCG-2004-17465. 
Comments and material received from the public will become part of this 
docket and will be available for inspection or copying at room PL-401 
on the Plaza level of the Nassif Building, 400 Seventh Street SW., 
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, 
except Federal holidays. You may also find this docket electronically, 
through the Web Site for the Docket Management System, http://dms.dot.gov.

FOR FURTHER INFORMATION CONTACT: For questions on this notice contact 
LCDR Sam Goswellen, Office of Investigations and Analysis (G-MOA), U.S. 
Coast Guard Headquarters, 2100 Second St. SW., Washington, DC 20593-
0001, telephone 202-267-0691, or email [email protected]. If 
you have questions on viewing or submitting material to the docket, 
call Andrea M. Jenkins, Program Manager, Docket Operations, telephone 
202-366-0271.

SUPPLEMENTARY INFORMATION:

Background

    Under certain conditions, a U.S. or foreign flag vessel must obtain 
clearance from the Bureau of Customs and Border Protection (CBP) before 
it departs a port or place in the United States (see Title 46 Appendix, 
U.S. Code, sec. 91). The Coast Guard can ask CBP to deny or revoke the 
vessel's clearance if its owner, operator, or person in charge could be 
subject to a fine or civil penalty for violating one of the following 
statutes:
     Federal Water Pollution Control Act, 33 U.S.C. 
1321(b)(12);
     Act to Prevent Pollution from Ships, 33 U.S.C. 1908(e), 
and implementing regulations;
     Ports and Waterways Safety Act, 33 U.S.C. 1232(f), and 
implementing regulations;
     Tank vessel operating or inspection requirements, 46 
U.S.C. 3718(e), and implementing regulations in 33 CFR part 157 and 46 
CFR parts 30 through 40 and 150 through 154;
     Inland Navigation Rules, 33 U.S.C. 2072(d); and
     Nonindigenous Aquatic Nuisance Prevention and Control Act 
of 1990, as amended by the National Invasive Species Act, 16 U.S.C. 
4711(g)(3).
    In lieu of asking CBP to deny or revoke clearance, we can also 
accept a bond or other satisfactory surety proffered on behalf of the 
vessel. Local Coast Guard Captains of the Port (COTPs) determine 
whether a surety is satisfactory. In a 1995 Federal Register notice (60 
FR 7927, Feb. 10, 1995), we asked the public to comment on this 
practice. We specifically requested input on 11 questions, including 
whether we need greater uniformity in surety format and content, and 
whether sureties should be the subject of new Coast Guard rules.
    In light of the comments we received, we have decided to take 
further action only with respect to Letters of Undertaking (LOUs). LOUs 
are often proffered to and accepted by the Coast Guard as one form of 
satisfactory surety. An LOU is proffered on behalf of a vessel's owner, 
operator, or both (hereafter: ``owner/operator''). Among other 
undertakings, the owner/operator promises to satisfy any adverse 
judgment, up to a stated maximum amount.

Discussion of Comments

    We received four sets of comments in response to our 1995 notice. 
These comments will be entered in the docket for USCG-2004-17465 as 
supplemental materials.
    Two commenters favored nationwide uniformity in the format and 
content of sureties. The Coast Guard wants to make the process of 
proffering and accepting sureties easier for industry and for us. Some 
degree of uniformity can help us attain that goal. However, we also 
want to preserve the COTP's authority to accept a proffered surety only 
if it fits the circumstances of a particular case.
    Two commenters said existing practices can be reformed without 
requiring regulations. We agree that some reforms can be instituted 
without adding or amending regulations. The action we are taking with 
respect to LOUs does not require rulemaking.
    One commenter said surety procedures should allow for different 
formats. With respect to LOUs, this commenter said the Coast Guard 
should develop minimum requirements which, if met by the profferor, 
would result in the LOU's acceptance. This commenter, and a second 
commenter, also recommended accepting a standard LOU developed on 
behalf of protection and indemnity (``P&I'') clubs (maritime insurers) 
by the International Group of P&I Clubs. The second commenter cited an 
unreported U.S. district court opinion in support of this view. The 
Coast Guard agrees that a standard form provides useful guidance, but 
we do not think a single form can be accepted under all conditions. The 
LOU is in essence a contract. Therefore, it is subject to negotiation 
and agreement on its terms to fit the circumstances of the particular 
case. We note that in the past, when a standard form has been approved 
by P&I club managers, almost always this approval has been in the 
context of a suit asserting a vessel's in rem liability. However, the 
statutes authorizing the Coast Guard to request

[[Page 40401]]

denial or revocation of CBP clearance are not dependent on, limited in 
scope by, or equivalent to, the laws and procedures applicable to the 
assertion of an in rem claim against the vessel. Therefore, applying 
rules and practices developed with regard to asserting in rem claims 
against vessels under admiralty law is inappropriate and not required.
    One commenter recommended that the Coast Guard use the 
International Group of P&I Clubs' membership information to determine 
from whom the Coast Guard will accept an LOU. This involves how the 
Coast Guard determines who can be an ``approved'' LOU issuer, what 
standards will be applied in that analysis, and development and 
maintenance of an ``approved LOU issuer list'' over time. These issues 
are under active Coast Guard consideration but are beyond the scope of 
this notice.
    Two commenters said LOUs should be satisfactory to the Coast Guard 
whether the potential fine is civil or criminal in nature. The Coast 
Guard agrees that properly drafted sureties can be used in either civil 
or criminal cases. However, sureties for more serious or complex civil 
or criminal cases may need to address factors that do not arise in more 
common civil cases. The optional standard form LOU we are making 
available is intended for use only in the more common civil cases.
    One commenter said a COTP should give ``verbal authorization to 
release'' a vessel before the paperwork for the surety is completed. 
The Coast Guard disagrees. Congress has provided statutory means for 
keeping vessels alleged to be involved in statutory violations in port 
until the public's interests are adequately secured, and we believe 
those means should be used unless and until the vessel provides 
satisfactory surety. An unenforceable verbal agreement does not provide 
such surety.
    One commenter said that the Coast Guard's current procedures 
require a vessel to provide unnecessary and unreasonable double 
security, because in addition to the LOU itself, the vessel's owner 
must waive all objections to the Coast Guard's in rem jurisdiction over 
the vessel. The Coast Guard disagrees that the current procedures 
require the vessel interests to post unnecessary and unreasonable 
double security. The optional standard form LOU preserves the vessel 
interests' defenses, none of which is to be regarded as waived, except 
as stated in the LOU itself. The Coast Guard's procedures do not 
continue to subject the vessel to in rem seizure for the same 
violation, once an LOU or other satisfactory surety is posted, provided 
the LOU or other surety terms are satisfied.
    One commenter said that, under 33 U.S.C. 1232, the clearance denial 
and revocation provisions of 46 U.S.C. Appendix, sec. 91, apply only if 
a vessel's owner has been given notice of the alleged violation and an 
opportunity for a hearing. This commenter said the Coast Guard 
oversteps the bounds of its police power by refusing port clearance to 
a vessel that has received no such notice and hearing. The Coast Guard 
disagrees. The statutes authorizing us to request the CBP's denial or 
revocation of a vessel's clearance do not require that request to be 
preceded by a hearing. No case has held that a pre-hearing request to 
withhold clearance violates due process. We note that, while not 
directly applicable, the Supplemental Rules for Certain Admiralty and 
Maritime Claims of the Federal Rules of Civil Procedure do not require 
a pre-issuance hearing before a warrant of in rem or quasi in rem 
arrest is issued by a U.S. Magistrate Judge.
    One commenter criticized the Coast Guard for trying to retain the 
right to arrest a vessel or other property of the vessel owner even 
after satisfactory surety is posted. This commenter contended that, in 
in rem proceedings against vessels, admiralty law principles preclude 
arresting the vessel or attaching any other property once an LOU has 
been accepted as surety. However, the statutes authorizing the Coast 
Guard to request denial or revocation of CBP clearance are not 
dependent on, or equivalent to, the assertion of an in rem claim 
against the vessel. Therefore, applying rules and practices developed 
with regard to asserting in rem claims against vessels under admiralty 
law is inappropriate and not required.
    One commenter said that the Coast Guard's efforts to require an LOU 
correspondent to agree to act as a P&I club's agent for service of 
process are wrong because club correspondents are not agents of the 
club, and unnecessary because the International Group of P&I Clubs' 
standard LOU form issued in admiralty in rem actions against vessels 
contains an agreement to appear in any court of competent jurisdiction 
and file a claim on behalf of the owner of the vessel. The Coast Guard 
points out that the vessel's master is ordinarily the agent for the 
vessel owner and that appointment of a local individual or entity to 
receive correspondence and service of process on the owner's behalf and 
in the master's stead is a reasonable tradeoff for the Coast Guard's 
acquiescence in clearance for the departure from local waters of both 
the vessel and its master. The Coast Guard also notes that, since 1995, 
most LOUs issued by P&I clubs contain a provision similar to the one 
criticized by the commenter.

Standard Form Letter of Undertaking

    Comments received in response to our 1995 notice confirm the Coast 
Guard's view that all sides will be benefited by having a standard form 
LOU that can be used nationwide for most civil penalty cases. 
Therefore, we are making available the optional standard form LOU 
appearing as an Appendix to this notice.
    We do not think this form would be suitable for criminal cases or 
for civil cases where the penalty may be $500,000 or more. Serious or 
complex cases require other forms of surety. For a surety document to 
be satisfactory in a serious or complex case, it may need to include 
some or all of the following pledges or guarantees from the vessel 
owner, operator, or person in charge to:
    (1) make vessel crew members and other employees available for 
legal proceedings, including making necessary travel arrangements to 
facilitate appearances;
    (2) stipulate to certain incontrovertible facts, e.g. ownership and 
operation of the vessel or the authenticity of documents and things 
from the ship, without prejudice to its or their other rights and 
defenses;
    (3) authorize acceptance of service of correspondence and legal 
papers;
    (4) enter an appearance in Federal district court; or
    (5) comply with instructions regarding payment of funds.
    Use of the standard form LOU is entirely optional on the part of a 
profferor. It can be proffered in any COTP zone. In addition, vessel 
representatives can still proffer a nonstandard LOU, a surety bond, or 
any other satisfactory form of surety. However, in each case, a COTP 
retains full authority to accept or reject a proffered surety, 
including a proffered standard form LOU, after consultation with the 
COTP's servicing legal office.

    Dated: June 25, 2004.
T.H. Gilmour,
Rear Admiral, U.S. Coast Guard, Assistant Commandant for Marine Safety, 
Security and Environmental Protection.

Appendix--Optional Standard form Letter of Undertaking

Secretary of Homeland Security
C/O Commanding Officer
U.S. Coast Guard
Marine Safety Office

[[Page 40402]]

[address]

Re: [name of vessel, on or about date, location] [applicable 
regulation or statute]

Dear Sir:

    In consideration of the United States of America refraining from 
withholding the clearance required by 46 U.S.C. App. 91 of the [name 
of vessel], arresting the vessel or attaching any property belonging 
to the owners of the vessel in connection with claims and actions 
arising out of alleged violations described above occurring within 
the navigable waters and the Exclusive Economic Zone of the United 
States, and arising on or after [date of alleged violation] 
(hereafter referred to as the ``alleged incident''), the undersigned 
[name of the bound party], hereby agrees:
    1. That [name of agent or attorney-in-fact] as agent [or 
attorney in fact] for the owner/[name of bound party] and operator/
[name of bound party] shall accept delivery of correspondence for 
the owner/[name of bound party] and operator/[name of bound party] 
and service of any process on behalf of the owner/[name of bound 
party] and operator/[name of bound party] in any case, action, 
administrative hearing, or proceeding related to or arising from 
civil penalties for violations as generally identified above; that 
delivery to the agent [or attorney-in-fact] constitutes effective 
notice and service on the owner/[name of bound party] and operator/ 
[name of bound party];
    2. To file, or cause to be filed, upon demand, a claim and/or 
appearance by the owner and/or operator of the vessel [name of 
vessel] in any action brought against either or both of them by the 
United States concerning the alleged violations, and to defend the 
vessel from any in rem claim asserted against it;
    3. In the event a final judgment (after appeal if any) is 
entered, in favor of the United States against the vessel [name of 
vessel], or her owner or operator as a result of such action, to pay 
and satisfy said judgment, plus interest and costs, up to and not 
exceeding [maximum amount of civil penalty that may be assessed], or 
any lesser amount settled between the parties, provided said 
settlement has been made with the written approval of [name of bound 
party];
    4. Upon written demand, to cause to be filed in said hearing or 
action, a bond in form and sufficiency of surety satisfactory to 
you, or to the court, sufficient in amount not to exceed [maximum 
amount of civil penalty that may be assessed], including interest 
and costs, to secure your claim against the owner and/or operator, 
and [name of vessel] in the aforesaid judicial action. In the event 
that the bond referred to in this paragraph is filed, the 
undersigned shall have no further obligation under Paragraph 3 
above.
    This letter is to be binding whether the [name of vessel] be 
lost or not lost, in port or not in port, and is given without 
prejudice to all rights or defenses which the [name of vessel] and/
or her owner or operator may have, none of which is to be regarded 
as waived, with the exception that the owner and operator agree that 
delivery to the agent identified in Paragraph 1 above, of 
correspondence for the owner/[name of bound party] and operator/
[name of bound party] will constitute effective notice to the owner/
[name of bound party] and operator/ [name of bound party], and that 
the owner/[name of bound party] and operator/[name of bound party] 
will not assert in any subsequent hearing or action any alleged 
defects in notice or service of process issued and served in 
accordance with this undertaking. This letter does not constitute an 
admission of liability by the vessel or its owner/[name of bound 
party] and operator/[name of bound party].
    This letter is also written entirely without prejudice to any 
claims and rights the United States of America may have pursuant to 
any applicable certificate of financial responsibility (``COFR'') 
pertaining to the vessel, none of which claims and rights is to be 
regarded as waived or discharged.
    Owner/[name of bound party] warrants that it owns the vessel. 
Operator/[name of bound party] agrees that it may be considered an 
operator of the vessel under applicable United States law.
    If no penalty is assessed, or no action is filed in the 
aforesaid court within a period of three (3) years from the date 
hereof, this letter shall become null and void. If the owner/[name 
of bound party] fails to appear as required by Paragraph 
 or fails to waive objections to jurisdiction as 
required by Paragraph , then the undersigned 
association agrees to pay to the United States the full amount of 
this letter of undertaking.
    It is understood and agreed that the execution of this letter by 
[name of law firm] on behalf of the undersigned [name of bound party 
underwriter or P&I club] shall not be construed as binding upon 
[name of law firm] but is binding only upon the undersigned [name of 
bound party underwriter or P&I club].

Sincerely,

[name of bound party underwriter or P&I club]

By: [firm]

[name of attorney]

    As attorney-in-fact for the above limited purposes only per 
[telex, telefax, letter] authority from [name of bound party 
underwriter or P&I club] dated [date].

[FR Doc. 04-15112 Filed 7-1-04; 8:45 am]
BILLING CODE 4910-15-P